Intelligence: 4 November 2016Implications of failing to make an assessment of local housing need

For some time now the Government’s National Planning Policy Framework (NPPF), and its accompanying Planning Practice Guidance (PPG), have required Local Planning Authorities to prepare a full, unconstrained Objective Assessment of Housing Need (OAN). Whilst the Government is considering ways of streamlining the prescribed PPG methodology - through the Local Plans Expert Group (LPEG) recommendations - the recent High Court case between Shropshire Council and Secretary of State, and the subsequent Judgment, blocking development of 68 homes, has highlighted the importance of developers submitting robust OAN evidence in section 78 appeals.

Our Research team have worked on a number of section 78 appeals and Local Plan Examinations with Barrister Christopher Young, who comments on the Shropshire Judgment as follows:

“The Judgment has confirmed that in circumstances where there is no up-to-date NPPF compliant Local Plan, then the appellant in a section 78 appeal needs to submit OAN evidence to prove there is no 5-year housing land supply – because the OAN figure is required in order to calculate the 5 year housing land supply.

"Plenty question the need and expense of the OAN evidence, but this most recent High Court Judgment is a salutary lesson in why it is completely necessary, unless you are content to rely on the OAN figure submitted by the Local Planning Authority."

Christopher suggests that the appeal and Judgment can be summarised as follows:

1. The Council accepted the figure in their pre-NPPF Core Strategy was not an OAN figure.

2. The Appellant said that if the Council didn’t know what the OAN was, the Council could not demonstrate a 5 year supply of housing land.

3. The Appellant did not submit an alternative OAN figure for Shropshire;

4. The same approach was following in the appeal of Sara Morgan in Fairford, Cotswold.

5. This persuaded the Inspector who allowed the appeal on the basis that without the Council knowing its OAN, it could not demonstrate a 5 year supply of housing.

6. The Council challenged the decision in the High Court on the basis that the Inspector had to work out the OAN to come to a conclusion on 5 year supply.

7. Mr Justice Ouseley gave permission (in fairly emphatic terms) for the Council to bring the appeal.

8. The Judge accepted that argument and yesterday quashed the planning appeal decision.

He continues: "The Judge (Lang J) relied heavily on the key parts of the existing Judgments of the High Court:

West Berks v Secretary of State and HDD Burghfield Common Ltd (16 February 2016);

South Northants v Secretary of State and Barwood Land and Estates Ltd (10 March 2014).

“Taken together, the above Judgments make a case for providing OAN evidence at section 78 appeals that should be clearly explained to Inspectors in evidence as in my experience some Inspectors sometimes question the need for the OAN evidence or the need to come to a firm view on the what the OAN figure actual is.

"They seem reluctant, less they be challenged over the detail or might prejudice the Local Plan process. But the reality is their decisions on OAN at a section 78 appeal can only be based on the evidence presented to them – see the Stratford Judgment (paras 34 – 44) and West Berks Judgment (paras 44- 53).

"And in fairness to all Inspectors none of this would be necessary if we had regional strategies, structure plans or the LPEG formula to a simple and easy OAN.”